This is a review of Philip Hamburger’s book, Is Administrative Law Unlawful? [ed.: see here]. Most scholars believe that administrative law began with the rise of administrative agencies in the late nineteenth century. Hamburger, by contrast, suggests that administrative law — by which he means legally binding rules that are developed through unilateral actions by the executive branch — has existed since colonial times and beyond, and that claims of administrative autonomy are direct descendants of the claims of the English monarchy to executive omnipotence. The Framers of the Constitution were well aware of such claims, and utterly rejected them. Yet, Hamburger argues, modern administrative law embodies precisely the evils that the Constitution and its separation of powers sought to prevent.

I predict that most readers will find Hamburger’s historical analysis compelling. Somewhat fewer will share his “originalist-ish” claim that the Constitution, properly understood, is at odds with modern administrative law. Many fewer, given pre-existing ideological commitments, will agree that the administrative state is despotic and must be dismantled, with power flowing instead back to the judiciary and Congress. Nevertheless, anyone interested in the rise of the American administrative state will benefit from this original, erudite, and thought-provoking book.

10/30/2015

An interesting originalist analysis from the D.C. Circuit (Judge Douglas Ginsburg writing) in Pollack v. Duff (from last summer, but I missed it when it came out). In a job announcement, the Administrative Office of the U.S. Courts said that it would consider applications from any federal employee and (bizarrely) anyone else only if they lived in the D.C. metro area. Pollack, then living in Kentucky, objected under the Article IV, Sec. 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states."

After extended analysis, the court found that the clause does not apply to the federal government. Pollack apparently relied principally on a statement by James Iredell, which the court found ambiguous. But the court went on to say:

To the extent Iredell’s pamphlet reflects this view [that the clause bound the federal government], it is relevant evidence of how a reasonable person might have understood the clause when the Constitution was ratified. Or, as the defendants put it, Pollack’s pamphlet is “a guide to understanding the original meaning” of the Constitution, but not a source of “rights not explicitly found in the text.” Appellees’ Br. at 27; see Noel Canning v. NLRB, 705 F.3d 490, 500 (D.C. Cir. 2013), aff’d on other grounds, 134 S. Ct. 2550 (2014) (“When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution”).

The defendants also caution that Iredell’s statement is subject to the caveat that the views expressed by either a proponent or an opponent of ratification are not necessarily indicative of how a reasonable person would have understood the text of the document. As the defendants point out, some essays authored by both Federalists and Anti-Federalists were designed to bring skeptics around to the author’s position and do not necessarily reflect the common understanding of the meaning of the text of the Constitution. See John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337, 1358–61 (1998). The defendants’ point is well taken. We note, for example, that in 1788, when Iredell authored the pamphlet Pollack quotes, he also published notes from the ratifying convention in North Carolina. The historical record shows “[v]arious Federalist speakers tinkered with” the notes from that convention before Iredell published them, so they would “serve as Federalist campaign literature,” not as an accurate account of the views expressed at the convention. James H. Huston, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 24 (1986).

After finding little else in the drafting or ratifying history to be helpful, the court continued:

We find more definitive guidance in cases decided by the state and federal courts soon after ratification of the Constitution. See Noel Canning, 705 F.3d at 501 (“The interpretation of the Clause in the years immediately following the Constitution’s ratification is the most instructive historical analysis in discerning the original meaning … because it reflects the ‘public understanding’ of the text” (quoting District of Columbia v. Heller, 554 U.S. 570, 605 (2008))).

Several interpretations of the clause are evident in the early cases and commentary. See Lash, 98 Geo. L.J. at 1259–60. As Pollack points out, at least two state courts held it prevented the federal government from discriminating on the basis of state citizenship. See Douglass v. Stephens, 1 Del. Ch. 465, 477 (1821) (holding the Privileges and Immunities Clause was “designed to restrict the powers of Congress as to legislation, so that no privilege or immunity should be granted by it to one citizen of the United States, but such as might be common to all”); Kincaid v. Francis, 3 Tenn. 49, 53 (1812) (White, J. concurring) (“It seems to us most probable that [the Privileges and Immunities Clause] was intended to compel the general government to extend the same privileges and immunities to the citizens of every State, and not to permit that government to grant privileges or immunities to citizens of some of the States and withhold them from those of others”).

The view advanced by these courts was not widely shared, however. The “vast majority of cases decided in this early period of the Republic” concluded the clause limits the extent to which a state may discriminate against nonresidents but it does not apply to the federal government. Lash, 98 Geo. L.J. at 1262 n.108; see, e.g, Livingston v. Van Ingen, 9 Johns. 507, 577 (N.Y. 1812) (Chancellor Kent, concurring) (“The provision that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states … means only that citizens of other states shall have equal rights with our own citizens …. This is a very clear proposition, and the provision itself was taken from the articles of the confederation.”); Campbell v. Morris, 3 H. & McH. 535, 548 (Md. 1797) (“When the new constitution was formed … there was reason to fear that particular states might not allow the citizens of other states the same privileges enjoyed by their own citizens; and had a provision securing them been omitted in the constitution, they might have been deprived of them”). The interpretation of the Privileges and Immunities Clause that “came to dominate case law and scholarly commentary from the Founding until Reconstruction” — and that is still evident in the Supreme Court’s more recent jurisprudence — provides the clause merely “require[s] states to grant visiting citizens some of the same privileges and immunities that the state conferred upon its own citizens.” Lash, 98 Geo. L.J. at 1260.

Congratulations to Kurt Lash for some influential originalist scholarship.

The court's last point is textual/structural:

Finally, the location of the Privileges and Immunities Clause in § 2 of Article IV supports the conclusion that it is directed at the states and not at the national government. Article IV is the “so-called States’ Relations Article.” Baldwin, 436 U.S. at 379. Section 2 of Article IV, in addition to the Privileges and Immunities Clause, included the Interstate Rendition Clause and the Fugitive Slave Clause, both of which were concerned with comity among the states. ... If the Privileges and Immunities Clause applied to the federal government, then we might expect to find it in Article I, § 9, alongside other limitations upon the powers of the Congress to discriminate against residents of certain states, such as the Export Taxation Clause and the Port Preference Clause; in any case, it would not be in Article IV.

And in conclusion:

Although the historical record is not pellucid, we think the weight of the evidence indicates the Privileges and Immunities Clause was not originally understood as a limitation upon the authority of the federal government. We agree with the defendants, therefore, that the geographical limitation in the AO’s hiring process is not subject to scrutiny under that clause.

10/29/2015

The Supreme Court's 2014-15 term will undoubtedly be remembered as one of the most significant of the Roberts Court. From the definition of marriage to the legality of Obamacare's implementation, the Court issued several landmark decisions that grabbed headlines and consumed commentators.

Less noticed, however, were four opinions authored by Justice Clarence Thomas that call into question the constitutionality of the massive and largely unaccountable bureaucracy that we commonly refer to as the administrative state. In bold and clear prose, Justice Thomas explained how the basic principles of our Constitution's separation of powers are incompatible with the system of bureaucratic rule that took root in the Progressive era and now reaches into virtually every realm of American life.

In Department of Transportation v. Association of American Railroads, Justice Thomas described the violence done to the structure of our constitutional system when Congress delegates its lawmaking powers to administrative agencies. In B&B Hardware v. Hargis Industries, he stressed that agencies may not, consistent with Article III of the Constitution, usurp the federal courts' judicial power. And in Perez v. Mortgage Bankers Association and Michigan v. Environmental Protection Agency, he argued that federal courts shirk their constitutional duty when they defer to an agency's interpretation of federal law. Together, the principles articulated by Justice Thomas in these opinions attack the very existence of the modern administrative state.

In Heller v. District of Columbia, the Supreme Court held that the Second Amendment protects the right of individuals to keep and bear arms for self-defense. In McDonald v. City of Chicago, the Court held that this right is also protected from infringement by the states under the Fourteenth Amendment. Thus, many important decisions about the reach of government’s regulatory authority will henceforth come from the federal courts. The scope of the Second Amendment right, however, has not yet been clarified, either by the Supreme Court or by a consensus of the lower courts.

This short symposium contribution sketches out several possible approaches to defining the scope of the right, and argues that one of them is better than the others, at least for purposes of adjudication under the Second Amendment. The essay argues that Judges Diarmuid O’Scannlain and Diane Sykes have shown — more clearly than the Supreme Court has yet done — the right way to decide cases in this nascent area of constitutional law.

10/27/2015

In my previous post, I set forth an interpretation of “subject to the jurisdiction” of the United States that is different than what I regard as the original meaning. Under this nonoriginalist view, the phrase means subject to the exclusive jurisdiction of the United States. Since the children of parents who are citizens of another country, including illegal immigrants, are subject to the jurisdiction of those countries, those parents and children would not be subject to the jurisdiction of the United States. Interestingly, this interpretation is very similar to those who claim that the term only covers those who do not have allegiance to another nation.

Here I want to offer three nonoriginalists arguments for this interpretation – the type of arguments that are typically made by nonoriginalists. First, there are strong nonoriginalist reasons for not following the original meaning as to birthright citizenship for the children of illegal immigrants. At the time of the 14th Amendment, there was not an illegal immigrant issue, since there were essentially no federal laws restricting immigration. Thus, the Framers of the Amendment were unlikely to have had that issue in mind. Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter. Thus, the original meaning is not weighty.

Second, there are strong normative arguments against birthright citizenship for illegal aliens (and for many others). Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation. One common argument is that conferring citizenship on the children of illegal aliens obviously provides an incentive for more illegal aliens. A less common argument against conferring citizenship of the children of noncitizen legal residents is that it makes it more difficult to have guest worker programs, since those workers may have children while they are in the United States.

But the strongest normative argument against conferring citizenship on the children of illegal aliens derives from the fact that, in the modern world, American citizenship is a tremendous privilege. It gives access to high wage markets as well as welfare state benefits. Given these privileges, the normative question is how we should allocate this privilege of citizenship.

It seems obvious that citizenship should not be granted simply based on the accident of being born in the United States. Why would one want to allocate citizenship to children merely because they were born here as a result of their parents having come here illegally? As I noted in an earlier post, there are a variety of ways one might want to allocate citizenship (and immigration) – based on quotas from countries, based on skills contributed to the United States, based on years already lived in the United States – but none of those are based on the simple accident of being born in the US.

Finally, a third type of nonoriginalist argument is to look to the existence of laws throughout the world, especially that of “civilized” countries in Europe. A strong trend as to these laws suggests that normatively the United States ought to follow it. Significantly, the only two developed countries in the world that have birthright citizenship are Canada and the United States. None of the European countries have it and several developed nations have repealed it in the last generation.

Thus, there is a strong nonoriginalist argument for reading the 14th Amendment not to confer birthright citizenship, at least to the children of illegal aliens. Nonoriginalists might not agree with this argument, but it is hard for them to argue that the argument is illegitimate, since they accept this type of argument. In the end, one can’t have it both ways. If one favors the freedom that nonoriginalist interpretive gives to an interpreter, then one must live with the way that those who disagree with you would use that interpretive freedom.

10/26/2015

My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”—must surely stand as one of the most searching and thoughtful in recent memory.

The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.

But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.

As Dorf notes, originalists have done this at great length, beginning most prominently with Judge McConnell's famous 1995 piece focusing on the Republican's use of the Privileges or Immunities Clause in early drafts of the Civil Rights Act of 1875. As Dorf notes, Calabresi and Perl offer another effort from 2013. For my work from 2006, see the second half of this; for my much broader 2015 defense of the antidiscrimination reading of Privileges or Immunities Clause, with consideration of Brown at the end, see here. (Contrary to Mike Ramsey's suggestion, by the way, Harlan's dissent in Plessy, like his dissent in the Civil Rights Cases, deploys the language of the Privileges or Immunities Clause rather than that of the Equal Protection Clause. See here at 260-64.)

Dorf dismisses these attempts by appealing (without citation) to historians' authority and then insisting that the real debate is between living constitution and a Raoul-Berger-style specific-expected-applications strawman. On the latter point, see Mitch Berman, a non-originalist who insists on fighting stronger opponents than that, here at 385-89.

Independent of these historical and specific-expected-applications-strawman points, my reaction is in the same vein as Larry Solum, who presses Dorf with several questions about the ability of different theories to justify Brown. Whether or not originalism works as a Brown-producing factory, how precisely does non-originalism perform that (purportedly critical) task? Dorf tells us that he likes Brown, and that seems to be enough as an interpretive matter. The current centrality of Brown in our legal culture could not have worked, of course, as an argument in 1954. Once that culture is established, it offers a reason not to overrule Brown, perhaps, but that is just the same level of credit which Dorf rightly says isn't worth much when claimed by an originalist.

I made just this complaint against Jed Rubenfeld in page 623 of my 2006 piece, comparing the merits of a paradigm-case-based living constitution with my textualist form of originalism (the Fregean "Theory of Original Sinn," a label which unfortunately has not caught on):

Rubenfeld simply asserts his preference for the principles that he likes, and which would support Brown. But the Theory of Original Sinn offers the materials for a reason why those principles are good ones as an interpretive matter. Because the Theory of Original Sinn avoids resting constitutional interpretation on the mere ipse dixit of later interpreters, it is a better candidate for offering an actual normative defense of Brown, rather than a pledge of adherence to it.

Let's try to translate this point into Dorf's metaphor. Dorf compares non-originalists and originalists to competing builders. The originalist says he might not be able to build the house of Brown, but at least he won't tear it down. We shouldn't use such a builder, Dorf says. But to say that Brown is a brute first principle not justified by anything outside itself, as Steven Sachs suggests (see p. 2277) on behalf of his interlocutors, an offer apparently accepted by Dorf, is very different from saying that it was produced (i.e., justified) by a non-originalist constitutional theory. The non-originalist claims, not that he built the house of Brown--i.e., that his interpretive theory can justify Brown--but that the house built (justifies) itself. The originalist on Dorf's account wants credit for not tearing down a house, but the non-originalist wants credit for building a house that actually built itself. Neither deserves to place a "built by" sign in front of Brown.

Update: I had not seen it when I wrote the post above, but Dorf responds to Solum here, referring to Ely's discrete-and-insular-minorities approach and to interpretive pluralism. I'm not sure Ely's theory really counts as an interpretive theory as much as a theory of the Equal Protection Clause which would have to be separately justified. Ely insists on the existence of a textual and historical hook for his theory, rather than just its normative desirability as such. Also, since, as Dorf notes, Ely's view condemns Roe, it does not seem that Dorf could accept it.

Dorf says that Brown engages in moral reasoning. I don't see it--there are references to new psychological data which original-meaning devotees can use themselves, but no analysis of normative considerations like justice or goodness or propriety than I can see. Even if Brown is actually pluralist, though, that does not mean that pluralism, as such, supports Brown. To interpret Brown's footnote 11 as a moral argument is to interpret it as a pretty bad moral argument. If we are trying to understand Brown sympathetically and to justify it the best we can, far better to read footnote 11 as a psychological minor premise in tandem with a Strauderian "no implications of inferiority" major premise. But that's perfectly consistent with viewing original meaning as binding.

A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper. We can disagree over how many such decisions there are but if there is anything on the list, it's Brown [v. Board of Education]. ... Yet, Brown is at least a prima facie problem for originalists because the framers and ratifiers of the Fourteenth Amendment appeared to accept de jure segregation.

He goes on to argue that it's not enough for originalists to say Brown would be preserved from the modern application of originalism by stare decisis:

The problem for originalism is not that adoption of originalism would result in the reinstatement of Jim Crow. The very sacrosanctity of Brown reflects the fact that--despite ongoing racial inequality across multiple dimensions--no serious figure in American public life advocates a return to Jim Crow.

The problem that Brown and/or other sacrosanct precedents pose is not one of preserving those precedents but of failing a test. The process of deciding upon the "correct" interpretive methodology proceeds, like many intellectual tasks, via a reasoning process that goes back and forth between general principles and concrete applications until one reaches reflective equilibrium. But if Brown and/or some other precedents are right "because Brown" and/or "because X, Y, and/or Z," that means that any interpretive approach that is acceptable must actually produce Brown and/or the other precedents. Preserving sacrosanct precedents is not enough. Indeed, it's not the point of the exercise at all.

Among other points, Solum highlights the fact that no theory of interpretation guarantees the result in Brown:

... Failing Dorf's test is only a vice of originalism if there are alternative methodologies that satisfy the test.

This point is particularly important because it is quite clear that many of the major alternatives to originalism do not as a matter of necessity produce the outcome in Brown. Consider two important forms of nonoriginalism: (1) common law constitutionalism (e.g. as defended by David Strauss) and (2) the multiple-modalities or pluralist view (e.g. as defended by Phillip Bobbitt).

Common-law constitutionalism as an interpretive methodology is consistent with many possible outcomes in Brown; indeed, it seems most consistent with a more gradualist approach that would not have overruled Plessy but which made it more difficult to meet the separate but equal test.

Bobbitt's theory is an even clearer case. Let me stipulate an altered version of the modalities: (1) text, (2) historical practice, (3) constitutional structure, (4) practicality, and (5) constitutional values. (I know that is not Bobbitt's list.) We need to assume arguendo that text does not favor Brown: if the public meaning of the text leads to Brown then Dorf's objection doesn't get off the ground to start with. Historical practice seems to disfavor Brown. Constitutional structure seems somewhat indeterminate, although one might make structural arguments on both sides. Practicality did not favor Brown. Of course, the constitutional value of equality does favor Brown (and let's assume that there are no contrary constitutional value arguments). It seems clear that the complex argumentative practice of constitutional law as limited by the permissible modalities, does not guarantee Brown.

Steinberg goes further, arguing (persuasively, in my view) that originalism need not produce the Brown outcome to be a viable interpretive theory:

It's obviously the case that Brown was an immensely welfare-enhancing and virtuous decision, because it helped end a horrible evil. But is any immensely welfare-enhancing and virtuous decision sacrosanct, and must a good interpretive methodology be capable of generating certain decisions that generate immensely welfare-enhancing social change? What's wrong with acknowledging that the Constitution just doesn't say certain things we'd like it to say?

For example, slavery was an even greater evil than segregation. The Constitution, however, permitted slavery until it was amended to forbid it. In a counterfactual world where the Thirteenth Amendment was never ratified, we could imagine a non-originalist decision that read the Constitution to ban slavery. Would we say that originalism was defective because it couldn't produce such a decision? I think not. It doesn't follow from the immense virtue of some social/legal change that the Constitution must be capable, in its current unamended state, of generating that change by means of judicial review. It only follows that it is morally imperative that the change occur by some means, which certainly need not be judicial. Further, I would think that this moral imperative runs most directly to political branches that can change the law, rather than to courts interpreting the old law they're stuck with, which may well be flawed from a moral perspective. That is, there was obviously a moral imperative in 1954 to pass laws ending segregation, or to amend the Constitution to do so, which comes to the same thing. But was there really a moral imperative, failing those developments, to read a constitutional provision enacted in 1866 to ban segregation? Perhaps if segregation was so popular that Brown was the only way to end it, but I doubt that's the case; rather, to crudely simplify things, Brown only was enforced once segregation became unpopular enough for political actors to enforce Brown.

My thoughts are twofold:

(1) This is a bit of an academic exercise. In my view, originalism (of the modern variety) very plausibly produces the result in Brown. While the basic meaning of "equal protection of the laws" is a bit ambiguous, one can surely read it as requiring (among other things) equal treatment by the laws. A number of prominent originalists do not read it that way, but on the other hand that seems to be the way post-ratification Justices read it, in Strauder v. West Virginia, Yick Wo v. Hopkins, and in dissent in Plessy v. Ferguson. It seems as good a reading of the plain text as any other, and contrary views rely on particular contemporaneous readings that may or may not have been representative. And if one accepts the "equal treatment" reading of the text, at minimum the actual practice of Jim Crow, which was manifestly unequal in all respects, is surely unconstitutional. (Whether an actual regime of separate-but-equal would be constitutional is another academic exercise, because in the cultural reality of the South there was not and could not ever have been such a thing; for what it's worth I think even if actually equal facilities could ever have been achieved, racial divisions would still be invalid).

Professor Dorf's implications to the contrary rest on the proposition that the framers and ratifiers of the Fourteenth Amendment likely did not intend to ban segregation. Whether or not that's true, I think it is not decisive. Dorf seems still to be operating under an old-style "original intent" originalism, wherein we try to guess what particular people would have thought when confronted with the particular question. As is well known, modern originalism more commonly focuses on original meaning. This is an example of where the difference in methodology matters. The modern originalist's question is: what did "equal protection of the laws" mean? It's relevant, but not conclusive, that people at the time didn't think the Fourteenth Amendment prohibited segregation (if that's true). To the contrary, for modern originalists, the original meaning of the enacted phrase might well ban segregation even if people generally did not realize that, or chose not to think about it. To pick a prominent example, I'm confident that Justice Scalia thinks the original meaning of the Fourteenth Amendment bans segregation irrespective of what particular people at the time of enactment thought it would do.

So in sum I don't think (contrary to Dorf's implications) originalists need to be unduly concerned about Brown. An originalist Brown would have been written very differently, but it would likely have reached the same result. SeePlessy v. Ferguson (Harlan, J., dissenting). True, I can't say that it necessarily would have reached that result, but as Larry Solum says, that's an unreasonably high standard: no theory of judicial practice would necessarily lead to the Brown result.

(2) Nonetheless, I'm a professor, so I love academic exercises, and so I won't fight Professor Dorf's hypothetical. Let's assume originalism, fairly applied, could not produce Brown. Does that automatically disqualify originalism as a theory of interpretation?

Here I agree with Asher Steinberg. Any theory of judicial practice that objectively constrains what judges may do must contemplate a situation in which judges cannot remedy a great moral evil. To be sure, we could have a theory of judicial practice that allows judges to reach any result they want, and that would never produce this dilemma (assuming we had the right judges). But in that situation, the judicial practice is essentially non-interpretive; that is, it cannot turn on anything actually contained in the Constitution. To amplify Steinberg's points, suppose the Fourteenth Amendment had never been ratified: would Dorf nonetheless think that Brown should come out as it did?

I can't see how he has any satisfactory answer to this question. If his answer is that Brown would come out the other way, then his theory of interpretation (whatever it may be) has the same flaw as originalism. If his answer is that Brown would still come out the same way (because it has to!), then his theory of judicial practice is not really interpretation at all, but free-ranging judicial power. And while there are, in my view, some very respectable arguments for free-ranging judicial power, there are surely drawbacks as well. The benefits (getting the result in Brown) must be weighed against the costs. Reasonable people may disagree, but the answer is (at best) not obvious. And if the answer isn't obvious, then it's not a conclusive argument against originalism.

As a final thought, it's possible (if you're not persuaded by the foregoing) that originalism has a "Jeffersonian" escape valve. Recall that Thomas Jefferson famously said, in the context of the Louisiana Purchase, that the President's duty to the Constitution was not his highest, and sometimes the Constitution might need to be violated for a greater good (with the President prepared to pay the price if Congress and the people did not agree). Perhaps a judge's duty to the Constitution's original meaning is similarly qualified, thus allowing extaordinary deviation in the case of a great moral evil such as segregation.

As a result, I think Professor Dorf presents a false dichotomy: either originalism must always be followed, even at the cost of great moral evil, or it must not be followed even in ordinary cases. To the contrary, even if I thought that originalism could not produce the result in Brown, and even if I thought judges were under a moral imperative to produce the result in Brown regardless of what the Constitution said about it, I still would not be obliged to think that judges should disregard the Constitution's original meaning on more mundane questions such as, for example, the scope of the President's recess appointments power or the ability of the phrase "the Legislature" to include something that is manifestly not the legislature.

But Dorf's original post and his new post provide a wonderful opportunity to clarify some of the issues that make repeated appearances in debates about originalism. This post addresses different aspects of Dorf's original post which discusses "Semantic Originalism" and the ongoing debate over how to carve the constitutional theory space using categories like "originalism," "nonoriginalism," and "living constitutionalism." Although I will be using Dorf's original post as a point of departure, this post is not directed at Dorf in particular--instead I am trying to clarify the nature of contemporary debates over originalism, nonoriginalism, and living constitutionalism.

He makes a series of excellent points but I especially like this one (from near the end):

... There is room for argument about how we should use the word "originalism," but the there is extensive evidence for the notion that originalism is a family of constitutional theories mostly (but not completely) unified by fixation and constraint. One could argue about the precise dividing line: I have argued for "constraint as consistency"--constitutional practice must be consistent with the original meaning of the text, but I can imagine different formulations that would capture most of the usage. But any approach that captures most or almost all of the usage would seem to have an advantage over the proposal to limit the term "originalism" to expected applications originalism, a view disavowed by almost all originalist theorists and by the major originalist judges--recognizing that the evidentiary use of expected applications is acceptable to almost all contemporary originalists as well.

There is another problem with Dorf's definition of originalism. The theory that the meaning of the constitutional text is constituted by original expectations about originalism is not a coherent theory. It runs into the objections that prompted the shift to public meaning in the first place. Original expectations are likely to be inconsistent, because different framers, ratifiers, or members of the public had different expectations about applications. And the original expectations will quickly run out--since there will be many topics that were not foreseen and hence where there are no original expectations. I could go on, but the important point is that we should be wary about any attempt by opponents of a theory to define the theory in a way that makes the theory obviously false but does not capture the way the theory is developed by those who self identify as proponents of the theory. Definitional moves of that kind are likely to be misleading and to confuse rather than clarify the theoretical issues.

Barnett, a professor at Georgetown’s law school, recently took to a place that needs it — the University of California–Berkeley — this message: “The judicial passivism of the Supreme Court has combined with the activism of both congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be.”

In his lecture “Is the Constitution Libertarian?” Barnett acknowledged that in many respects American life “feels freer” than ever, and that we have more choices about living as we wish. In many other ways, however, the sphere of freedom is too constricted, and individual rights are too brittle, because for decades America’s Lockeans have been losing ground to Hobbesians: “The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends.”

And in conclusion:

Republican presidential aspirants must be forced to join their party’s intramural argument about the judiciary’s proper function. Then we can distinguish the Lockean constitutionalists from the merely rhetorical conservatives whose reflexive praise of “judicial restraint” serves the progressives’ Hobbesian project of building an ever-larger Leviathan.

As I’ve explained before, most contemporary conservative proponents of judicial restraint are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question. These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. I don’t see how any conservative could object to that approach (though I of course recognize that there is plenty of disagreement among originalists on what some provisions of the Constitution mean).

[Whelan] is among the most thoughtful defenders of “judicial restraint” as something other than what he calls “judicial passivism.” Historically, “judicial restraint” was typically invoked precisely to urge judicial passivism. Whelan is free to revise, update, and repurpose the phrase “judicial restraint” if he likes. But my own sense is that his distinction is largely unknown to many politicians who invoke judicial restraint (or other bromides like “strict construction” or “not legislating from the bench”). They probably don’t know what any of these words mean because they are “lazily” invoking rhetorical boilerplate that does not always, or perhaps even often, mean what Ed Whelan now defines it to mean.

And further:

I am old enough to remember when [Texas Law Professor] Lino Graglia’s version of judicial restraint was the wholly dominant vision of the role of judges in the Federalist Society. Although Graglia grudgingly allowed for judicial review in principle, he used to delight in saying that there is no law that Congress would actually pass that would justify judicial negation. He was a mainstay at every national student symposium, and he was no originalist. [Judge J. Harvie] Wilkinson is of that school. Times have changed, and not just among “libertarians.”

...

It really wasn’t until Ed Meese came to Washington that originalism was reinserted into conservative thinking. But Meese’s heroic reassertion of originalism introduced a tension between enforcing original meaning and judicial restraint. Over the years, as originalism has assumed an increasingly powerful hold on the legal culture, this tension has increased to the point were one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism. That is what Whelan is proposing, but at this point, it is more a wish than a reality. Language is stubborn, and the original meaning of judicial restraint is not so easily displaced.

Barnett welcomes (or at least accepts) my distinction between judicial restraint (proper deference to a democratic enactment when originalism fails to generate a sufficiently clear answer that the enactment is unconstitutional) and judicial passivism (wrongful deference). He argues, though, that the version of judicial restraint that “used to be the dominant strain in conservative circles” rejected any such distinction, and he is skeptical that judicial restraint can be effectively “redefine[d]” to incorporate that distinction (and thus to be “compatible with originalism”).

I’m dubious of Barnett’s claim that what “used to be the dominant strain” of judicial restraint “in conservative circles” denied a distinction between judicial restraint and judicial passivism. I also think that such a distinction (however labeled) is obviously necessary. Anyone who denies the distinction would believe that the judiciary could never err by determining a democratic enactment to be constitutionally permissible. Who has ever taken that position? (No, not even Lino Graglia, who in any event was never representative of traditional thinking on judicial restraint.)

My sense is that there is less of a philosophical dispute here than meets the eye. Rather, it's a proxy battle over a different proposition (that sometimes shows through): whether the Ninth and Fourteenth Amendments (in their original meaning) license wide-ranging judicial oversight of federal and state laws to protect rights not specifically spelled out in the Constitution. In that sense, it's not really an argument about interpretive approach -- I think everyone involved agrees with Pilon's proposition at the general level -- but an argument about a particular (though very important) application of that approach.

This spills over into the recurring judicial restraint debate because Whelan wants to use the positive connotations of restraint as a rhetorical tool against the broad interpretation of the Ninth and Fourteenth Amendments, and Barnett and his allies want to resist that. But I think it might be better if they just argued about the meaning of the Amendments.

As to some candidates and political commentators, though, I agree that there is a tendency to invoke "judicial restraint" without thinking carefully about what it means (as I've written here). And I absolutely agree with Professor Barnett that there is a tension between originalism and judicial restraint that one needs to deal with in some way (perhaps, though not necessarily, in the way Ed Whelan deals with it).